Liquor Law 101: The Administrative Regime
Alcohol & Advocacy routinely provides readers with an “insiders” look at how the liquor laws in British Columbia are written, interpreted, and applied. At A&A we often write about the Liquor Control and Licensing Branch making “decisions” and issuing licences as well as fines – this is what lawyers call “administrative law”. But what is admin law?
The purpose of this article is to explain the concept in greater detail so the reader will be better equipped in their next discussion with the Branch or their local MLA. Administrative law concepts also make for great cocktail party conversation.
Administrative law is everywhere. From the Canadian Radio-television and Telecommunications Commission (CRTC) that regulates the content of your cable TV subscription, to the BC Chicken Marketing Board that sets the quotas for chicken producers in the province, every day your life and your business is affected by the world of administrative law.
You can think of administrative law as the processes and mechanisms of the welfare and regulatory state. Administrative law principles are engaged when a piece of legislation is relied on to affect someone’s rights or interests, but the decision or action is not being made by a legislature or a judge. In these instances the authority to interpret and apply that legislation has been delegated to a board or tribunal, or even the hands of an individual officer or inspector. The board or tribunal charged with interpreting and applying the relevant legislation will typically be compromised of individuals with expertise or training in that specific industry. In theory this operates to produce better decisions and better policy.
The reality is that few individuals or businesses will ever come in direct conflict with the judicial system, or lobby an elected politician for legislative change. They will however encounter dozens of administrative decision makers throughout their life – from the Passport Office, to the Canada Revenue Agency – and each time they will expect the decision maker to apply the appropriate statute correctly and fairly.
British Columbia’s Liquor Control and Licensing Branch is another example of an administrative decision maker. As a regulatory body the Branch operates in accordance with the Liquor Control and Licensing Act and the Regulation as well as with its own set of established policies.
Like all administrative decision makers, the Branch’s primary source of authority is the language of the Act itself. The Act is legislation that provides “hard rules” that must be followed. Because legislation sets out “hard rules” the drafters in Victoria write the laws broadly, allowing for the details and finer points of the law to be set out in “subordinate legislation” known as “regulations” and to a lesser degree Branch policy. The advantage of regulations over legislation is that the regulations are set by cabinet, rather than the legislature as a whole, making them easier to change or repeal. This allows for greater flexibility to adapt to changing Branch needs, and in the case of policy, the exercise of discretion.
Policy, unlike legislation and regulations, is not created by the executive branch of government but rather developed and approved by the Branch itself. As the needs of industry and the standards of the community shift, the Branch responds by reviewing policy with stakeholders and amending it when necessary. Policy provides the guidelines that direct the actions of staff and administrators in applying the Act and the Regulation. Policy allows a regulatory body to make consistent and equitable decisions regarding the groups it regulates. In short, the Branch’s published policy statements provide the framework for the exercise of its discretionary powers.
Because the decisions made by the Branch regarding issuing licences and taking enforcement action can have serious consequences for licensees, the Branch has a number of administrative processes in place to ensure that the licensees obtain “administrative fairness”, also known as “procedural fairness”, when dealing with the Branch.
The term “administrative fairness” encompasses a list of procedural safeguards that have been developed by courts and tribunals over decades of decision making that ensure an individual gets effective participation in a decision making process that will affect their rights and interests. They include: the right to know the case against you, the right to be heard, the right to a neutral decision maker, and the right to an appearance before a tribunal with the power and jurisdiction to make the appropriate decisions.
If you or your establishment has been on the receiving end of negative treatment by the Branch, or any other administrative decision maker, you should contact counsel immediately to preserve your rights and be advised of your options. While some bars and restaurants choose to retain “liquor consultants” to handle their disputes with the Branch and the City, only lawyers have the experience and training necessary to advise on issues of procedural fairness, as well as related matters like jurisdiction, the laws of evidence, and the law of contract.
*Alcohol & Advocacy publishes articles for information purposes only. They are not a substitute for legal advice, and persons requiring such advice should consult legal counsel.